The failure to deposit the balance sale consideration within the specified time can allow the defendant to rescind the agreement to sell.

M.L. Singhal, J. - It was a suit for the specific performance filed by Gurbax Singh against Bhajan Singh, which was decreed by Sub Judge First Class, Nakodar vide order dated 18.1.1991. Defendant-Bhajan Singh was ordered to execute sale deed pursuant to agreement to sell dated 16.5.1987 with respect to land measuring 30 kanals 14 marlas = 1/5 share of land measuring 153 kanals 12 marlas in favour of plaintiff-Gurbax Singh within a month of 18.1.1991 on receipt of the balance sale consideration. Plaintiff put in execution on 20.10.1993 with a view to calling upon Bhajan Singh to execute sale deed in his favour in terms of the decree.

2. JD put in objections saying that he was not bound to execute sale deed as decree holder had not deposited the balance sale consideration in Court within the period specified by the Court in the decree.

3. Vide order dated 24.7.1999, Additional Civil Judge (Senior Division), Nakodar dismissed the objections and directed the decree holder to deposit the balance sale consideration in Court within one month. It may be mentioned here that vide order dated 18.1.1991, the Court had decreed the plaintiffs suit for possession through specific performance of agreement to sell dated 16.5.1987 and had directed the defendant to execute sale deed after receiving balance sale consideration. It was mentioned that in case the defendant failed to execute the sale deed within one month of the date of decree the plaintiff would be at liberty to get the sale deed executed on deposit of balance sale consideration through the process of execution. Execution application No. 56 of 1991 filed on 26.3.1991 was dismissed on 7.3.1992 as the DH had failed to deposit the balance sale consideration in Court within the specified time granted by the Court.

4. Case of the decree holder was that at no stage the JD was ready to execute the sale deed in his favour though he was always ready with the balance sale consideration. The JD always put the matter off on one pretext or the other. Vide application dated 11.10.1995 the decree holder prayed to the Court that he be allowed to deposit the balance sale price of Rs. 92,500/- in Court. JD contested this application saying that the previous execution application No. 56 of 1991 was dismissed on 7.3.1992. DH has not mentioned the dismissal of his previous application in this application and, therefore, he is not entitled to deposit the balance sale price. Decree holder should not be allowed to deposit the balance sale price now when four years and nine months period has gone by. He was directed to deposit the balance sale money within one month of 18.1.1991, if he were anxious to obtain sale deed from the defendant-JD, he would have complied with this term of the decree.

5. In my opinion, executing Court should have allowed the objections of JD when the DH failed to deposit the balance sale consideration within one month of 18.1.1991. In fact, the DH should have first deposited the balance sale consideration in Court within one month from 18.1.1991 and after having done so, he should have filed execution application. He could not upon the JD to execute sale deed in his favour until he himself had complied with the terms of the decree. The decree enjoined upon him to deposit the remaining sale money within one month of 18.1.1991. After he had complied with this condition incorporated in the decree, defendant could be called upon to execute sale deed in his favour. DH filed execution on 21.3.1991. It may be mentioned here that he was required to deposit balance sale consideration of Rs. 92,500/- in the Court after defraying Rs. 5932.25 towards costs of the suit as assessed by the Court. He got the execution application No. 56 of 1991 dismissed.

6. After execution petition No. 56 of 1991 had been got dismissed as not pressed/unsatisfied, he filed execution petition No. 53 of 1993 in which JD filed objections under Section 47 CPC saying that when DH had not deposited the balance sale